Tripura State Of Council For Science & Technology vs State Of Tripura And Ors

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[1] This is a petition seeking review of the judgment dated 27.02.2019 delivered in WP(C) 503 of 2019 on the fundamental ground that in the reply (Annexure-3 to this petition) filed by the petitioner affirmed by it Joint Member Secretary [in-charge], the fact has been incorrectly averred in Para-8 which reads as follows:

"8.That in regards to the statements made in Para 13, 14 & 15, 16, 17 & 18 of the writ petition it is stated that the Respondent No-3 begs to state that due to mistake on their part in the advertisements dated 21/11/2014 and 08/09/2015 respectively, it has been wrongly mentioned that the appointments would be on Contract basis for 3 (three) years. Similarly, in the offer of appointments it has also been recorded that the appointment would be on Contractual basis keeping in abeyance the regular scale pay for the said posts. The answering Respondent states that both the appointment of the petitioners were made against sanctioned regular posts and through a recognized process of appointment recognized by law. However, once the said mistakes had been noticed by the answering Respondent, proper communication has been made to the State Government but till date no clarification or comment has been received from the State of Tripura that's why their appointment could not be regularized."

[2] Having referred to the said averments made in Para-8 of the reply, this court has made the following observation in the judgment and order dated 27.02.2019:

"07. The State of Tripura-respondents filed a separate reply and they have categorically asserted in para-10 that the Tripura State Council for Science & Technology (TSCST) is an autonomous organization of the Department of Science, Technology & Environment (DSTE), Govt. of Tripura and the appointing authority of the petitioner is Member Secretary, TSCST. The Administrative Department (DSTE) has no role for appointment of any employee under TSCST. The Administrative Department is only responsible for creation of posts, framing of recruitment rules, continuation of posts etc.

Further in paras-13 and 20 the following has been observed:

"13. That in reply to the statement made in paragraph 9 of this writ petition, it is stated that the Appointing Authority (TSCST) has appointed both the Petitioners on contractual basis after observing necessary formalities.

In State of Karnataka & Ors. V. Umadevi & Ors., AIR 2006 SC 1806, the Supreme Court held that:

There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules."

* * * * * * * *

"20. That in reply to the statement made in paragraph 18 of this writ petition, it is stated that The Appointing Authority (TSCST) has appointed both the Petitioner on contractual basis after observing necessary formalities. But, there is no policy of the Government where any contractual employee can be regularized directly in any scale.

Moreover, it is clear from the offer of appointment at para 3 (xi) that "This offer can be cancelled at any time without assigning any reason. It will not confer any right for regularization or appointment later."

So far the contention of the paras-13 and 20 are concerned, cannot be applied in the present case in view of the stand taken by the respondent No.3 in his reply. According to the TSCST it was a gross mistake on their part that they had converted the regular post to a contractual post and the mistake started from the advertisement to issuance of the offer of appointment and it was not even noticed when the letter of appointment was issued.

In view of the said admission, this court does not confront even any ambiguity in the matter, but a bona fide mistake which can always be corrected by the competent authority i.e., the respondent No.3. The respondents No.1 & 2 have projected certain general principles in respect of the right of the contractual employees to claim regularization. In this regard, the law as relied by them, to some extent is no more res integra. However this law is also factored by certain other circumstances and relevant consideration. But in view of the position taken by the respondent No.3 (the TSCST) those objections lose their relevance in the context. [Emphasis added]

[3] By the said judgment and order dated 27.02.2019, this court had directed the respondent No. 3 ,in particular, to treat the writ petitioners (the respondents No 3 & 4 herein) as regularly appointed in the post from the day when they were so appointed on the contractual basis and release their regular scale of pay from that day. However, it has been observed that the regular scale of pay shall be notional from the period of their appointment till the day of judgment and the actual pay shall be released after re-fixing their pay in terms of the said order within a period of three months.

[4] It has been stated by the review petitioner that challenging the said judgment dated 27.02.2019 an intra court appeal being WA No.192/2019 was filed. The said writ appeal was withdrawn by the review petitioner with liberty to file a review petition before the Single Judge as would be evident from the order dated 19.11.2019 passed in WA No. 192 of 2019. It has been observed in the said order dated 19.11.2019 as follows:

"Counsel for the appellant submitted that the deponent of the said affidavit did not have authority to make the statements made in paragraph-8 and for which the appellant institution has initiated an inquiry. He submitted that these averments and declarations were contrary to the record and unauthorisedly made.

There is nothing on the record to suggest that when the writ petition was being argued before the learned Single Judge, any such stand as noted above was taken on behalf of the appellant. Even if the stand of the appellant is that the advocate appearing on behalf of the appellant was not aware about the factual inaccuracies in the affidavit in reply filed on behalf of the appellant, in our opinion it would not enable us to examine the correctness of the judgment of the learned Single Judge in the present appeal only on this ground. Such an aspect would first have to be brought to the notice of the learned Single Judge and invite his decision thereon. We cannot criticize the decision of the learned Single Judge on the basis of material which was not placed before him for his consideration." [Emphasis added]

[5] It is apparent that it has been categorically observed that the factual inaccuracies in the reply filed by the respondent No.3 would not enable the appellate bench to examine the correctness of the judgment of the Single Judge only on that ground. In that background, the review petitioner, the appellant in the writ appeal being WA No. 192/2019 sought leave of the court to withdraw the writ appeal with liberty as stated. The review petitioner has asserted that the Deputy Secretary, Tripura State Council for Science and Technology, the review petitioner, prepared a note on 30.09.2019 duly signed by the Joint Member Secretary and Vice-Chairman of the Tripura State Council for Science and Technology wherefrom it would reveal that the reply, filed by the review petitioner in response to the averments in the writ petition was affirmed by one Nataraj Datta who was, at that time, serving as the Joint Member Secretary, Tripura State Council for Science and Technology but without proper examination of the factual position available on record. The review petitioner has asserted that a series of new facts which were not revealed in its reply has surfaced subsequently. The review petitioner has however, not disputed the fact that both the review petitioners were appointed Research Officers, Group A under the respondent No.2 on consolidated month remuneration of Rs.17,100 keeping in abeyance of regular scale of pay Rs.15,600-39,1000 (Pay Band 4) with the grade pay of Rs.5400/-. The writ petitioners filed representations praying for regular pay scale from the date of completion of one year of service i.e. with effect from 14.08.2016 so far the writ petitioner No.1 (the respondent No.3 herein) is concerned and with effect from 01.08.2017 so far the writ petitioner No.2 (the respondent No.4 herein) is concerned. But the said representation did not bring any positive yield.

[6] After exploring further information under Right to Information Act, the writ petitioners approached this court by filing petition under Article 226 of the Constitution of India urging the reliefs, commensurate to their demand as placed by the said representation. The petitioner in filing the reply did contend that due to mistake "on their part", while issuing the advertisements dated 21.11.2014 and 08.09.2015, it has been wrongly mentioned that the appointments would be contractual basis for three years. But no such post did exist at that time. Even, such stipulation was made by mistake in the offer of appointments. Even the review petitioner had contended in the reply that both the appointments of the respondents No. 3 and 4 were made against the sanctioned regular posts and through the recognized process of appointment. Once the said mistake was noticed by the review petitioner, proper communication had been made to the State Government, but till date no clarification was received from them and as such, the appointment of the respondents No. 3 and 4 (the writ petitioners) could not be regularized (see para 4.3 of the review petition).

[7] It has been also acknowledged that the writ petitioners by filing the rejoinder contended that post of Research Officer (Engineer) and Research Officer (Science) are the sponsored posts of the Central Government in the Department of Science Technology and the Central Government had been sending regular pay scale for the posts occupied by the writ petitioners. Now, by means of this review petition, the review petitioner has asserted, inter alia, as under:

(a) The note dated 30.09.2019 contained the fact that as per the memorandum (SOP) of the review petitioner, the member Secretary is the appointing authority. Since there was no approval of the Member Secretary or the Vice-chairman of the review petitioner on the internal notes, personal opinions/submission of the Joint Secretary have been reflected in the said para 8 of the reply (Annexure 3 to this petition). Thus, the process of vetting was grossly irregular and filing of the averment containing the said para 8 is beyond the authority of the Joint Member Secretary.

(b) The clause 17 of the memorandum of the review petitioner proves that the member secretary is the Chief Executive Officer (CEO) and he is conferred with the power of appointment and dismissal of the employees with the approval of the Chairman or the Vice-Chairman. The said averment was placed before the court by the Joint Member Secretary (in-Charge) namely Sri Nataraj Datta, according the review petitioner, without the approval of the "Member-Secretary" Tripura State Council for Science and Technology, and as such the said averment was not the approved averment of the review petitioner.

(c) The said Joint Member-Secretary (in-Charge) of the review petitioner affirmed the averment (para-8 of the reply) in particular without proper examination of the factual position available on the records. That apart, no approval from the Member-Secretary or the Vice-Chairman of the review petitioner was obtained for purpose of tweaking the process and hence the said averment requires modification on the basis of the extant records. According to the review petitioner, there was no policy of the state government, whatsoever, of giving regular appointment to the persons engaged on purely contract basis. The said process would be in violation of Article 14 of the Constitution of India, inasmuch as, the other eligible candidates who had not applied because the advertisement was for purely contractual engagement.

(d) Such contractual employees cannot clamour for absorption in the service and as such, the writ petitioner did not have right to get the regular pay scale from the date of their appointment.

[8] According to the review petitioner, three notes are pertinent and the review petitioner has paraphrased the content of the note in the following manner.

(a) In Note No-1 of Annexure-6 of the WP, Sri Nataraj Datta, In-Charge Tripura Space Application Centre (TSAC) [Principal Scientific Officer, TSCST] proposed to enhance the consolidated monthly remuneration to Rs.35,000/-(Rupees thirty five thousand) only or to consider regular pay scale on the Pay Band-4, Rs.15,000/- to Rs.39,000/-with Grade Pay of Rs.5,400/- to the respondent Nos.3 & 4. The proposal was examined by the Joint Member Secretary and Member Secretary of the petitioner, and finally, the Vice-Chairman (Minister in-charge of Science & Technology) decided to enhance the consolidated monthly remuneration to Rs.25,000/- (Rupees twenty five thousand) only, but the proposal of regular pay scale in the Pay Band-4, Rs15,000/- to Rs.39,000/- with Grade pay of Rs.5,400/- was not considered to the respondent Nos.3 & 4.

(b) Note No-22 of Annexure-7 of the WP was moved in the Council initiated by Sri Nataraj Datta, PSO(SA) & Head, TSAC for consideration of the Representations of Sri Deepayan Ghosh and Avisek Chaudhru (respondent Nos.3 & 4 respectively ) as regular employee of the petitioner, but the Member Secretary of the petitioner did not agree with the proposal and advised to process in Departmental file with considered views.

At one point of time, the matter of extending regular scale of pay to the respondent No.s 3 & 4 was also moved to the Finance Department, Government of Tripura under Note No-11 and the Finance Department, Government of Tripura under Note No-12 opined that "The Department is informed that there is no policy decision of the Government to regularize Contractual employee".

(c) Note N0-33 of Annexure-8 of the WP was moved from the Director, DSTE (Ex-officio Joint Member Secretary) to the Special Secretary, STE (Ex-officio Member Secretary of TSCST). Moreover, the views/proposals initiated by the Director, DSTE were not approved by the competent authority."

Thus, the review petitioner has quite robustly stated that without proper examination of the record, the averment at para 8 of the reply was made inappropriately and those are not based on fact at all.

[9] According to Mr. Somik Deb, learned counsel appearing for the review petitioner that the writ petitioners (the respondents No. 3 and 4) had relied on a file note (Annexure-6 to the writ petition) for framing the relief of grant of regular scale of pay in their favour. According to him, such noting is an internal matter and that cannot create any legal right. He has further submitted that such internal notings, if not approved and communicated by the competent authority, those cannot create any sort of right in favour of any person, nor does such file noting curtail the force of any legal order. Thus, on the basis of those materials, no mandamus can be issued.

[10] The writ petitioners, as contended, have failed to independently establish their rights and as a legal corollary thereof, that the writ petition was not maintainable. Hence, the judgment and order dated 27.02.2019 (Annexure- 5 to the memorandum of appeal) needs to be recalled. In support of his contention, Mr. Deb learned counsel has taken this court to a few decisions of the apex court. In Kunhayammed and Others vs. State of Kerala and another reported in (2000) 6 SCC 359, which decision is celebrated for doctrine of merger and review has been referred. In the present context, relevance of the said proposition of law is very remote. The apex court has dwelled upon that issue to cull out the doctrine of merger which fundamentally depends of nature of jurisdiction exercised by the superior forum and the content or subject matter of the challenge laid or capable of being laid. If there is no merger, the jurisdiction of review remains unaffected.

[11] Another decision has nourish the submission, advanced been for pressed the review in service petitioner. to In A.V. Papayya Sastry and Others vs. Govt. of A.P and Others reported in (2007) 4 SCC 221 the apex court has observed as follows:

"21. Now, it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed;

"Fraud avoids all judicial acts, ecclesiastical or temporal".

It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.

In the leading case of Lazarus Estates Ltd. v. Beasley: (1956) 1 All ER 341 : Lord Denning observed:

"No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud."

In Duchess of Kingstone, Smith's Leading Cases, 13th Edn., p.644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was 'mistaken', it might be shown that it was 'misled'. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.

It has been said; Fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).

Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants.

In S.P. Chengalvaraya Naidu v. Jagannath: (1994) 1 SCC 1 this Court had an occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that "there was no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". B approached this Court.

Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as 'wholly perverse', Kuldip Singh, J. stated:

"The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan- dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation". [Emphasis added]

[12] This report, as it appears, has been relied to support the contention of the review petitioner that Joint Member Secretary (In-charge) has exercised „fraud‟ in placing the averments in para-8 of the reply. But it is not the review petitioner who obtained the judgment on playing „fraud‟ on the court. How this decision can be beneficial for the review petitioner is quite inconceivable. Mr. Deb, learned counsel has relied on a decision in Gangadhara Pala vs. Revenue Divisional Officer and Another reported in (2011) 4 SCC 602 to assert that a liberal view should be taken in entertaining the review petition even if that has been filed belatedly and review petition should be decided in merit.

[13] A reference has been made to Khoday Distilleries Limited and Ors vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal reported in (2019) 4 SCC 376, where the apex court has laid down certain features of the review particularly having regard to dismissal of the SLP in limini or where the doctrine of merger becomes determinative. Hence, the said decision cannot have any relevance in the perspective fact, as noted before.

[14] Finally, Mr. Deb, learned counsel appearing for the review petitioner has placed his reliance on Arjun Singh and Ors vs. State of Himachal Pradesh and Others reported in (2015) 15 SCC 713 which primarily deals with regularization or entitlement to regularization and unfair employment practice by the state authorities. It has been enunciated thereon, that it is wrong to hold that the regularization of service is not permissible. In that particular case, the apex court having regard to the factual matrix and the records had directed the respondents to issue the letter of regular appointment to the appellants with effect from the date of their initial appointment stating that the initial two years be treated as spent on probation and with further direction to provide the appellants all consequential benefits including the regular scale of pay, increment the arrear of pay, seniority etc, to which they are entitled under the law.

[15] In Arun Singh (supra) the state had opposed the prayer of regularization on the ground that their appointments were made on contract basis and there was no provision for regularization of service in the regulation. What this court gathers from the averments and submissions, so projected, in the course of hearing, is that the Joint-Secretary was negligent to portray the facts as existed in the records.

[16] Mr. A. Bhowmik, learned counsel appearing for the respondents No.3 & 4 has at the beginning categorically stated that the review petition is a handi-work of serious suppression of material facts and of colourable exercise of power. He has referred to this court, the affidavit filed by the respondents No.3 and 4 (the writ petitioners). In the said affidavit, it has been asserted that pursuant to the communication dated 06.08.2018, the parawise comment was prepared by the review petitioner and was sent to the respondents No. 1 and 2, so as to avoid any dissimilar stand in respect of the said writ petition. After preparing the parawise comment, traversing the averment in the writ petition, Sri B.N. Majumder, learned counsel was asked by the letter dated 20.08.2018, to prepare the draft reply. On 17.09.2018, after preparation of the draft reply, the same was sent to the Finance Department, Govt. of Tripura and Law Department Govt. of Tripura by Notes No.21 and 24 respectively.

[17] After the reply was approved, the said Ex-Officio, Member Secretary, Tripura State Council for Science and Technology had signed the same. Mr. Bhowmik, learned counsel has seriously criticized the stand taken by the review petitioner that the Joint Member Secretary did not have any authority to sign the reply. He has referred to the note No. 26 initiated by Senior Scientific Officer, HOD & DDO where it has been noted as follows:

"In this context it is to be mentioned here that the Member Secretary or the Joint Member Secretary may be authorized signatory for the same."

It appears that the said note was placed before the Member Secretary and the note no. 28 is the note of the Member Secretary which reads as under:

"Jt. Member Secretary may be authorized to sign on behalf of TSCST."

[18] That was also approved by the higher authority including the Minister of the department on 14.11.2018. Accordingly, a communicated was made by the review petitioner on 26.11.2018 and the said communication was signed by the Senior Scientific Officer (Technoloy Promotion). The said communication clearly shows that the Joint Member Secretary of the review petitioner was authorized to sign on the affidavit. Mr. Bhowmik learned counsel has further placed a reference to the note No. 33 (Annexure 11 to the affidavit filed by the respondents No. 3 & 4) which has been appended with the affidavit filed by the respondent No. 3 and 4 where the following opinion is available.

"It seems that there offer of appointment are of "regular basis' as the term "contract basis" written in the offer of appointment is not par with all other terms and condition given to them by TSC (S & T) and in the term "contract basis" is written wrongly by TSCST, the said note was initiated by the Director DSTE."

[19] The note No. 11 (Annxure-12 to the affidavit filed by the respondents No. 3 & 4) has been placed with the said affidavit by the respondents No. 3 and 4. The note was initiated by the Principal Scientific Officer (S&T) and Member Deputy Secretary on 25.07.2016 clearly noting as follows:

"viii. Further, in their, offer of appointments it was mentioned that their appointment is on Contract basis on consolidated monthly remuneration keeping in abeyance the regular scale of pay band and grade pay. But in reality, no such fixed pay posts were created with concurrence of the Government (of Nodal Department and /or Finance Department). Hence, it is clear that there is not existence of such fixed pay posts." [Emphasis added]

[20] By the order dated 06.01.2020, the incumbent Member Secretary was asked to file an affidavit in respect of the content of the review petition inasmuch as the Member Secretary occupying the office at the relevant point of time had retired from the service. In compliance to the said order dated 16.01.2020, the Member Secretary, Tripura State Council for Science and Technology has filed a personal affidavit and has stated that disciplinary proceeding has been initiated against Sri Nataraj Datta who was then serving as the Joint Member-Secretary on the charge of misrepresentation of facts and making the averment in Para-8 of the reply with ulterior motive to causing undue gain to the writ petitioners. In the said affidavit, he, as the incumbent Member Secretary, has stated that admission made in para 8 was contrary to the materials available on records. Further, he has averred that the notation in the file are the personal opinion of Sri Nataraj Datta opinions were not of the competent authority of TSCST. But Mr. Deb, learned counsel for the petitioner has not made any reference to any notation as produced by the respondents No. 3 and 4 wherefrom it has clearly surfaced that the process has been thoroughly followed and the parawise comments were prepared having it routed through the Finance Department, Govt. of Tripura and Law Department Govt. of Tripura. Even in the memorandum of charge, it has been stated that the observation of the Director, Department of Science & Environment & Technology was not approved by the Competent authority of TSCST, but in support of the said observation, this court does not find out any note or any official communication or order. But the note of the Principal Scientific Officer (S & T), as referred before has not been counteracted.

[21] Mr. Bhowmik, learned counsel from the emerged perspective has submitted that from the records as supplied by the respondents that the Finance Department had authorized the Tripura State Counsel for Science and Technology to file their counter affidavit. It would be further apparent that the said opinion of the Finance department was placed in respect of the parawise comment, before those parawise comment were sent to the Law Department for examination. As the challenge was related to granting of the regular pay scale to the respondents no. 3 & 4, the para-wise comments were sent to the Finance Department. It would be apparent further that even the parawise comment was not prepared by the joint Member Secretary but he has been blamed and the purpose is obvious, is for filing the review petition. The parawise comment was finally prepared by one B. Datta, Senior Scientific Officer and on the basis of the said parawise comment, the engaged counsel, Mr. B N Majumder, prepared the draft reply.

[22] According to Mr. Bhowmik, learned counsel nowhere in the review petition, it has been asserted that the statement made in paragraghs 6 & 8 that the appointment of the petitioners were made against the sanctioned regular posts and through a recognized process of appointment and "it was a gross mistake on their part that they had converted the regular post to a contractual post and mistake started from the advertisement to the issuance of appointment", are factually incorrect. In para 9 of the review petition, it has been asserted that the said admission in paras 6 & 8 was "a bona fide mistake", but the officer who affirmed the affidavit has been charged of collusion. Unless the factual position is averred with certitude, it cannot be assumed that the said admission was based on no material. Even, the documents relating to creation of the post has been withheld by the review petitioner. Therefore, the ground of factual inaccuracies cannot be maintained. May it be noted that this court has made comparison of the records as produced by the respondents No.3 and 4 (the writ petitioners) with the records as produced by the review petitioner at direction of this court.

[23] Having regard to the contention as raised by the counsel for the parties, this court has scrutinized the original file under No.F.(14)(79)/TSE(ST)/Pt.I/CC/ open on 23.05.2018 as produced, having been directed by this court. It would be evident from the note no.15 dated 29.12.2016 by one B. Datta, Senior Scientific Officer that:

Note-15

The issue related to extending regular pay scale to 2(two) Officers namely Shri. Avisek Chaudhuri, Research Officer (Science) and Shri Deepayan Ghosh, Research Officer (Engineer) of the Tripura State Council of Science & Technology (TSCST) a constituent organisation of Department o Science, Technology & Environment (DST & E), Govt. of Tripura.

In this connection kind attention is drawn to the following points:

i. Recruitments of above mentioned 2 (two) Officers were made against clear vacancies on regular posts having Pay Band scale of Rs.13,575 - 37,000/- with Grade Pay- Rs.3,700/- in PB-4 (revised Pay Band Scale of Rs.15,600-36,100/- with Grade Pay-Rs.5,400/- in PB-4). The continuation of those pasts upto February 28, 2017 (P/34).

ii. The said regular posts were created with approval of the Government at the level of Council of Ministers with prior concurrence of both P & C Department and the Finance Department, Govt. of Tripura (P/35, P/38-39)

iii. The above posts also have RRs notified by the Nodal Department i.e. DSTE having approval at the level of the Council of Ministers with prior concurrence of GA(AR), Govt. of Tripura (P/27-31)

iv. Their recruitments were made in regular process specified in RRs. Due advertisement was made inviting applications and conducted interview of eligible candidates (P/50-59)

v. Though their appointments were against clear vacancies or regular post and through due process, they were initially paid consolidated monthly remuneration of Rs.17,100/- per month and later enhanced to Rs.25,000/- per month to protect earlier pay of Shri. Avisek Chuadhuri which he enjoyed during his service tenure at PWD (DWS), Govt. of Tripura. The above two officers namely Shri Avisek Chaudhri, Research Officer (Science) joined on 07.01.2016 and Shri Deepayan Ghosh, Research Officer (Engineer) joined on 13.08.2015 in the Council.

vi. From the above it is clear that though the Council made recruitments of above Officers under regular pay scale, they were given salary on fixed pay though, as per State Government Policy, only in case of Group-C and Group-D employees there is provision to engage in fixed pay keeping in abeyance the regular scale of Pay Band and Grade Pay. Moreover, though in their offer of appointments it was mentioned that their appointment is on Contract Basis on consolidated monthly remuneration keeping in abeyance the regular scale of Pay band and grade pay in reality, no such fixed pay posts were created with concurrence of the Government (of Nodal Department and/or Finance Department.

vii. Hence, in all practical purposes, their engagements should have been in regular pay scale band with grade pay.

viii. Therefore, considering the above it may kindly be considered to regularize them to above mentioned posts of Tripura State Council for Science & Technology (TSCST) w.e.f. joining in the said posts in Council." [Emphasis added]

[24] Mr. A. Bhowmik, learned counsel has also referred to the Note no.33 by the Department of Science Technology and Environment where it has been observed as follows:

Note-33

The undersigned has examined the Offer of appointment of Sri Avisek Chaudhuri, Research Officer (RO) (Science) and Sri Deepayan Ghosh, Research Officer (Engineering) and deduced the following information.

Both the regular posts viz RO (Science) and RO (Engineering) were created vide memorandum placed at Page-36 and Recruitment Rules (RR) at Page-31.

Accordingly, the advertisement for recruitment in these regular posts were published in local daily news papers (page:43 & 46) and was followed by open interview of eligible candidates and appointment letter were issued to the incumbents after their successful selections in the respective posts.

But in the offer of appointments issued from TSCST to concerned persons stated that "Offer of Appointment on Contract Basis."

In view of above following observations were made:

i. According to the rules and regulations of the Finance Department, Govt. of Tripura, prior concurrence has been taken before direct recruitment in these vacant regular post [Rule 9(1)(xxviii) of DFPRT, 20111].

ii. Both the employees were recruited by direct recruitment against the vacancies in the regular posts of RO (science) and RO (Engineering) by maintaining the guidelines of notified RR's of the respective posts and after maintaining all codal formalities.

iii. Their complete recruitment process was done by open interview and as per the evaluation of the selection committee of TSC(S&T) which is at par with the rules of notified RR's of the respective posts.

iv. In their offer of appointment it is written "Purely on Contract basis with monthly remuneration of Rs.17,100/-keeping in abeyance of regular pay scale of pay band -4, i.e. Rs.15600/- 39,100/- with GP Rs5400/- but expiry of contract period is nowhere mentioned.

v. Moreover the terms and conditions [3(i),3(vi(e)),3(x)] in their offer of appointments also negates the possibility of the engagements to be of "contract basis" or temporary in nature.

vi. The pay protection facility was also given to both the incumbents.

vii. Also there is nowhere mentioned in their offer of appointments that they cannot for the regular pay scale which is mandatorily mentioned in the case of "contract basis" employment.

viii. As per the decision of the executive committee of TSC(S&T), they are availing GPF and Pension facilities like every other regular employees of TSC(S&T).

Keeping all these into consideration it is clear that they are serving as regular employees in their respective posts and are entitled for full financial benefits and other facilities entitled for these posts and paying them only a monthly remuneration is injustice to them.

As per the Delegation of power laid in the Memorandum of TSC(S&T) registered under the society registration act 1860, the Member Secretary exercises the full power of appointments in the Council.

It seems that their offer of appointments are of "regular basis" as the term "contract basis" written in their offer of appointments in not par with all other terms and conditions given to them by TSC(S&T) and is the term "contract basis" is written wrongly by TSCST.

Submitted for kind perusal and consideration.

[25] In Note no. 14, the Director of Science Technology and Environment dated 10.12.2016 has given an elaborate note which reads as under:

Note-14

2 (two) post, 1 (one) each of Research Officer (Science) & Research Officer (Engineer) were created in Tripura State Council for Science & Technology with approval of the Government at the level of Council of Ministers with prior concurrence of both the P & C Department and the Finance Department, Govt. of Tripura. The RRs of the above posts have notified by the Nodal Department which also have approval of the Council of Ministers with prior concurrence of GA (AR), Govt. of Tripura.

Recruitment of the above mentioned 2 (two) Officers were made against clear vacancies on regular post having pay scale of Rs.13,575-37,000/- with GP 3,700 in PB-4 (received pay Band Scale of Rs.15,600-39,100/- with GP 5400 in PB-4). Due advertisement was made inviting applications and conducted interviews of eligible candidates. However, they were initially paid consolidated monthly salary of Rs.17,000/- per month and later enhanced to Rs.25,000/- per month to protect earlier pay of Shri avisek Chadhuri during his service tenure at the PED (DWS). Govt. of Tripura.

Further, in their offer of appointments it was mentioned that their appointment is on contract basis on consolidated monthly remuneration keeping in abeyance the regular scale of pay band and grade pay. But in reality, no such fixed pay posts were created with concurrence of the Government (of Nodal Department and/or Finance Department). Hence, it is clear that there is no existence of such fixed pay posts. So, in on practical purposes, their engagements should have been in regular pay scale band with grade pay but they have been given fixed pay, which is at variance with the State Government Policy.

Considering the above, they are entitled of regular pay Scale with GP w.e.f. their joining in Tripura State Council for Science & Technology. It is therefore proposed to regularize the services of 2 (two) officers namely Shri Avisek Chaudhury, research Officer (Science) and Shri Deepayan Ghosh, Research Officer (Engineer) of Tripura State Council for Science & Technology. [Emphasis added]

[26] All these notings clearly demonstrate all the authorities, concerned with the issue, are in consensus that no contractual post was created, but the writ petitioners were entertained against the regular posts created with regular pay scale. An overwhelming „consensus‟ is available records, in respect of the fact relating to the nature of the post, as created by the Finance Department. It may be noted that the compilation of all these notes has been produced by Mr. A Bhowmik learned counsel without any objection from the counsel for the review petitioner. As stated, as a measure of abundant caution, this court has compared the notes in original placed in the file No.F.4(81)/DSTE/ESTT/Pt.-II/(Lose)/open on 1st August, 2016, with those, filed with the affidavit filed by the respondents No.3 and 4.

[27] It has clearly surfaced the Joint Member Secretary has not taken any decision in preparing the reply. At the very early phase, he had made a draft (Note No.2 dated 28.05.2018) in the capacity of the reply, Member Secretary of Tripura State Counsel for Science and Technology and that was sent to the Department of Science, Technology and Environment (DSTE). Thereafter, the file routed through various departments and authorities. In the course, the counsel was engaged for the Tripura State Counsel for Science and Technology (see Note No.6-11). the most important note is the note No.17 where it has been observed as follows:

"As advised vide Note No.16, the parawise comment are placed it the file at 173-177 (marked)".

[28] The said note was given by one B. Datta, Senior Scientific Officer. Thereafter the said para was comment were approved by the various authorities whose initials are available in the file. Below the note No.19, in the note No. 20 it has been observed by one B. Datta, Senior Scientific Officer as follows:

"As approved (vide note no.19) for preparation of the parawise comment on behalf of Tripura State Counsel for Science and Technology, learned advocate Shri B. N. Majumder nominated by Law department was approached."

[29] It has been also noted in the note No.20 that the said counsel had prepared draft „affidavit in opposition‟. Thereafter, the matter was sent for vetting to the Law Department had and prior to that to the Finance Department. The Finance Department had cleared the matter by stating that the department would examine the matter at their level and filed the counter affidavit at an early date. Thereafter, the Law Department approved the draft counter affidavit on 5.11.2018. In the note No.25, one B. Datta, Senior Scientific officer has observed as under:

"As advised (vide note no.21), the draft of the Counter Affidavit on behalf of Respondent Nos.3 in connection with W.P.(C) 503 of 2018 prepared by the Ld. Advocate Shri B. N. Majumder has been concurred by the Finance Department (vide note no.22) and vetted by the Law Department (vide Note No.24).

Now, if agreed, it may be informed to the Ld. Advocate Shri B N Majumder for producing the matter before the Hon'ble High Court of Tripura.

Accordingly, a draft letter has been prepared and placed in the file for kind signature."

[30] In the note no. 26 given by the said officer namely, B. Datta Senior Scientific Officer, it was proposed that either the member Secretary or the Joint Member Secretary might be authorized signatory for purpose of filing the reply. Thereafter, for approval, the file was placed before the Member Secretary (not before the Joint Member Secretary). The Member Secretary has proposed the name of the Joint Member Secretary and authorized him to sign on the counter-affidavit reply on behalf of the Tripura State Counsel for Science and Technology (Note no.28) dated 13.11.2018. The said note was approved by the Minister in Charge, Science, Technology and Environment on 14.11.2018. Thus, the allegation as made that the Joint Member Secretary had signed the counter affidavit/reply without authorization is blatant lie. He had no role in preparation of the reply. Nonetheless, he has been made the „scapegoat‟. Even after the judgment while the judgment was scrutinized by Mr. B. Datta, Senior Scientific Officer, he had raised no objection in respect of the statement made in para 8 of the counter affidavit/reply (see note no. 34 dated 29.03.2019).

[31] This court had directed the review petitioner to produce all records relating to their grounds taken in the review petition. Records in respect of the creation of the post has been produced. But there is no record to show the creation of the contractual posts. Thus, it has to be inferred that what has been stated in para 8 of the counter affidavit /reply filed by the review petitioner in the writ petition is correct, particularly when the parawise comment in this regard was examined by the Finance Department, which is the authority for creation of the post. Further, it is evident that the averment in paras 6 & 8 to the said counter affidavit did not contain any statement of fact which is "de horse the record" as stated in the review petition.

[32] Having observed thus, this court is constrained to hold that this review petition is grossly an abuse of process of this court. The review petitioner is cautioned to refrain from such act in future. As consequence of the observations made above, this review petition stands dismissed.

The review petitioner shall pay a cost of Rs.10,000/- to the High Court Legal Services Committee within a period of one month from the day when they would receive a copy of this order.